Citation Nr: 0913327
Decision Date: 04/09/09 Archive Date: 04/21/09
DOCKET NO. 04-42 609 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to service connection for a low back disability,
to include as secondary to a service-connected right foot
disability.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. B. Ogilvie, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1974 to
September 1975.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a July 2002 rating decision of the Togus,
Maine, Regional Office (RO) of the Department of Veterans
Affairs (VA).
In March 2005, the Veteran testified at a hearing before a
Decision Review Officer at the Buffalo RO. In August 2006,
the Veteran also testified at a videoconference hearing
before the undersigned Acting Veterans Law Judge.
Transcripts of both hearings are of record.
In September 2006, the Board remanded the Veteran's claim for
further development. In October 2008, the Board remanded the
claim again for a VA examination and opinion. It is again
before the Board for review.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
In October 2008, the Board remanded the claim for a VA
examination and opinion to clarify the etiology of the
Veteran's low back disability. Unfortunately, a remand is
required in this case. Although the Board sincerely regrets
the additional delay, it is necessary to obtain an opinion
supported by the record.
The Veteran is currently service connected for a right foot
disability, evaluated as 10 percent disabling. She currently
suffers from a herniated disc in her lumbar spine. The
Veteran argues that her lumbar spine disability is due to 1)
a fall while in service, and 2) her right foot disability
which has resulted in an asymmetrical pelvic alignment,
consequently weakening her back.
In September 2006, the Board remanded the Veteran's claim for
a statement from her treating physical therapist regarding
the etiology of her back disability. He noted that the signs
and symptoms were consistent with right lower back pain from
asymmetrical pelvic alignment which "may" be from residuals
of her foot injury.
After the Board remanded the claim in October 2008, the
Veteran was afforded a VA examination. At the VA examination
in November 2008, the physician opined that the Veteran's
"low back pain secondary to her L5-S1 facet sclerosis and
thoracolumbar degenerative disc disease was at least likely
than not permanently aggravated by active duty service and
her service connected right foot condition." He noted three
reasons as his rationale. First, military service is more
strenuous on the axial skeletal system of females than
civilian occupations. Second, the Veteran has a history of a
fall onto her back. Third, the Veteran has a "history of a
chronic right foot condition which altered her gait to a
sufficient amount for a sufficient length of time to induce
or aggravate the changes in the lumbar spine manefested [sic]
by facet joint arthropathy (sclerosis) and degenerative disc
disease." He further noted that multiple, non-service
related factors have also contributed to the Veteran's back
condition, including her work as a nurse's aide, a leg length
discrepancy, and normal aging process, but "[t]hese
additional stressors do not negate the contribution of
injuries incurred in military service."
The Board finds several problems with this opinion. The
underlying problem is that although the physician noted that
he reviewed the claims file, his opinions appear to be based
solely on the Veteran's own statements, some of which are
inaccurate. Although the Veteran asserts that her lumbar
spinal disability is due to a fall in service, careful
examination of her service treatment records fails to
disclose any complaints, findings, diagnoses, or treatment
for a lumbar back injury or lumbar back pain. The Veteran
told the VA examiner that she "fell once while she was on
active duty, landing on her back, and injuring her right
ankle." See November 2008 VA examination (referring to a
fall in June 1974 that resulted in the injury of her service-
connected right foot). There is no indication in the record
that the Veteran landed on her back or claimed any back
injury after this fall. Until this point in the record, the
Veteran had not attributed her back injury to this fall. See
April 2005 claim. See also August 1995 DRO hearing
transcript, p. 18 (stating that she "bounced on her foot all
the way down" the stairs during her June 1974 injury). The
fall the Veteran originally attributed to her back disability
occurred in December 1974. See April 2005 claim. Service
treatment records documenting treatment after that incident
do not document a back injury or complaints of back pain.
The examining physician also opined that the Veteran's back
disability was at least likely than not permanently
aggravated by her active duty service. The Veteran's service
treatment records show that she did not have a back condition
at entrance to active duty service, and did not suffer from
or complain of a lumbar back condition while in service. It
remains unclear how the fact that military service is more
strenuous on the female axial skeletal system than a civilian
occupation aggravated her current condition, which she did
not develop until post-service. See July 2001 VA
rehabilitation record (noting that the Veteran's back pain
started 22 years earlier after she gave birth to her
daughter) See also March 2005 DRO hearing transcript, p. 1
(Veteran first hurt her back in February 2001).
The Board is also concerned about the fact that the VA
examiner vaguely opined that the Veteran had a history of a
chronic right foot condition which altered her gait "to a
sufficient amount for a sufficient length of time," but in
his examination, he noted that her gait was grossly normal.
He also noted that he attributed her back problems to
multiple other factors, but these stressors did not negate
the "contribution of injuries occurred in military
service." The examiner did not explain which in-service
injuries contributed to her back disability. Again, the
Board finds that the examiner based his opinion upon
inaccurate statements by the Veteran that she injured her
back during a fall in service and not by the evidence in the
claims file.
The United States Court of Appeals for Veterans Claims has
held that the Board is obligated by law to ensure that the RO
complies with its directives; and where the remand orders of
the Board are not complied with, the Board errs as a matter
of law when it fails to ensure compliance. Stegall v. West,
11 Vet. App. 268 (1998). The Board finds that the VA
examiner's opinion is inadequate because his conclusions are
not supported by the record. Consequently, a new examination
and opinion is warranted.
Accordingly, the case is REMANDED for the following action:
1. The RO should forward the Veteran's
file to an orthopedic physician to provide
a VA examination and opinion as to whether
the Veteran's current back disability is
related to active duty service or her
service-connected right foot disability.
The physician should be one who has not
previously examined the Veteran. The
claims folder, to include any newly
submitted medical records, if any, and a
copy of this REMAND is to be provided to
the physician for review. After an
examination and thorough review of the
record, the examiner should state as
follows:
(a) Whether it is as least as likely
as not (50 percent or greater
probability) that the Veteran's current
back disability is directly related to
her active duty service. If so, the
examiner should specifically comment as
to what in-service injury or incident
caused her current disability, and how
specifically it is related to her
current back disability.
(b) Whether it is as least as likely
as not that the Veteran's current back
disability was caused or aggravated by
her service-connected foot disability.
If so, the examiner should state what
specific symptom(s) of the foot
disability caused or aggravated her
back disability beyond its natural
progression, and how it did so. The
examiner should particularly comment on
the November 2006 opinion by the
Veteran's physical therapist.
The examiner should provide a full
rationale for his or her opinions. If the
examiner cannot provide any opinion
without resort to speculation, he or she
must so state, and explain why an opinion
cannot be reached without resorting to
speculation. In the rationale, the
examining physician should identify
specific records in the claims file that
support his or her position, and explain
why such findings support his or her
opinion.
2. The RO is to advise the Veteran that
it is her responsibility to report for any
ordered VA examination, to cooperate in
the development of the claim, and that the
consequences for failure to report for a
VA examination without good cause may
include denial of the claim. 38
C.F.R. §§ 3.158, 3.655 (2008). In the
event that the Veteran does not report for
any ordered examination, documentation
should be obtained which shows that notice
scheduling the examination was sent to the
last known address prior to the date of
the examination. It should also be
indicated whether any notice that was sent
was returned as undeliverable.
3. Thereafter, the RO should readjudicate
the claim of entitlement to service
connection for a low back disability, to
include as secondary to a service-
connected right foot disability. If the
claim is denied, a supplemental statement
of the case must be issued, and the
appellant offered an opportunity to
respond.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
S. M. CIEPLAK
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).